Sunday, December 27, 2009

Contemplating gay and lesbian families in New Mexico in 2010

I'll be heading home to DC tomorrow from our annual end-of-year sojourn to our second home in Las Cruces, NM. There's lots to keep an eye on in New Mexico in the coming weeks.

On January 1, 2010, New Mexico's new parentage laws go into effect. Read Sections 7-703 & 704 of the new statute. It says that "a person who...consents to assisted reproduction...with the intent to be the parent of a child is a parent of the resulting child." The consent is supposed to be in writing before the assisted reproduction takes place. If the requisite written consent does not take place, the intended parent is still a parent "if the parent, during the first two years of the child's life, resided in the same household with the child and openly held out the child as the parent’s own."

New Mexico thus becomes the second jurisdiction in the country to recognize the parentage of the same-sex partner of a woman who conceives through donor insemination. The District of Columbia was the first. Because the DC statute also amended the law governing birth certificates, lesbian couples in DC can now receive a birth certificate naming both women as parents. It remains to be seen whether New Mexico will make it easy for lesbian couples to obtain original birth certificates listing both moms. Otherwise, the couple will need to seek a parentage order from a court. Even if the birth certificate does list both moms, the couple should get a court order of parentage or adoption to guarantee that other states will recognize both women as parents. As I've said about lesbian moms in DC, only a court order is entitled to "full faith and credit" in other states.

As for couple recognition, New Mexico is one of a small handful of states that has no "defense of marriage act." But it also has no legal status available to same-sex couples. There will be numerous opportunities for the state and the courts to determine whether same-sex couples married elsewhere will be recognized as married in New Mexico. Albuquerque attorney N. Lynn Perls reported earlier this year that when a child is born to a lesbian couple married elsewhere the state will issue a birth certificate naming both women as parents if there is also evidence of no other parent (meaning, I assume, proof of anonymous donor insemination or perhaps known donor insemination in a state that makes clear the donor is not a parent).

Governor Bill Richardson supports domestic partnership legislation, but the bill introduced in the 2009 legislative session failed. Rumor has it he will try again. This year's session is only 30 days (January 19 to February 18) so the suspense won't last long. To date, no DP bill has been pre-filed. (A DOMA bill has been pre-filed, calling for a vote on a constitutional amendment stating that marriage is only between a man and a woman; no one thinks there's danger of that bill passing.) Equality New Mexico will be front and center on these legislative issues.

Meanwhile, when discussing New Mexico I always like to mention that unmarried partners are entitled to make medical decisions for each other here, even without medical powers of attorney. If a person isn't married, top priority in the absence of a medical power of attorney goes to "an individual in a long-term relationship of indefinite duration with the patient in which the individual has demonstrated an actual commitment to the patient similar to the commitment of a spouse and in which the individual and the patient consider themselves to be responsible for each other's well-being." (That's N.M. Stat 24-7A-5). New Mexico also allows an unmarried partner to recover damages under certain circumstances if his or her partner dies as the result of someone's negligence. This makes New Mexico one of the states that sometimes values all families, along the lines I advocate in my book.

4 comments:

I was told that this statute only applies to sperm donors and would not cover our situation (second-parent adoption of first kid in Maryland, married in Canada, second one due in February), though the wording here is different than what I saw before. We were also told that we might be able to manage an adoption akin to a step-parent adoption after the child turns 1, but that this is not automatic and we can't get the birth certificate in both names until then. So unless our family lawyer is misinformed, things aren't nearly as easy here as this makes it sound.

This is a great post. I just had one of the ‘Doh!’ moments and ran back to correct my own site before publishing my comment. You see my own comment form did not match what I’m about to advice. I get less comment than you, so never noticed any problem. I’ve changed it now anyway so here goes.

About Me

I have been working on gay and lesbian family law issues for more than 35 years. I teach at American University Washington College of Law, but for the 2011-2012 academic year and the Fall Semester 2012 I was the McDonald/Wright Chair of Law at UCLA. I have published many law review articles and book chapters. BEYOND (STRAIGHT AND GAY) MARRIAGE is my first book.